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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| BARRET J. BROWN, | ) |
| ) Court of Appeals No. A-10334 | |
| Appellant, | ) Trial Court No. 3SP-07-21 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2246 December 11, 2009 | |
Appeal from the
District Court, Third Judicial District,
Sand Point, Daniel Schally, Judge.
Appearances: David B. Loutrel, Anchorage,
for the Appellant. Joshua M. Kindred,
Assistant District Attorney, Adrienne P.
Bachman, District Attorney, Anchorage, and
Richard A. Svobodny, Acting Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
Barret J. Brown was convicted of misdemeanor driving
while under the influence1 and minor in possession.2 On appeal,
he claims that the district court erred when it denied his motion
to dismiss the charges because his right to a speedy trial under
Alaska Criminal Rule 45 was violated. For the reasons explained
here, we agree with Brown and reverse the judgment of the
district court.
Facts and Proceedings
Sand Point is a rural community that does not have a
sitting district or superior court judge. Consequently, Valdez
District Court Judge Daniel Schally travels periodically to Sand
Point to handle misdemeanor criminal cases. For at least three
years before January 2008, Sand Points misdemeanor criminal trial
weeks were calendared for every two months. In other words,
Judge Schally would preside over criminal cases in Sand Point
six times a year. In Browns case, the trial weeks were
calendared in June, August, October, December, and February.
On March 24, 2007, in Sand Point, Brown was charged
with being a minor in possession of alcohol. A few days later,
on March 30, based on the same incident, he was also charged with
driving while under the influence. Judge Schally set the case
for trial the week of June 4, 2007, in Sand Point. In April,
Brown retained an attorney who, on April 17, requested that the
case be continued until the October trial week. The motion was
granted and the trial was continued until the week of October 8.
This time was excluded from the Rule 45 calculation. Neither
Brown nor the State requested any other continuances, nor did
Brown agree to toll Rule 45 for any delay after the week of
October 8.
At the October 4 trial call, both parties said they
were ready for trial. But another trial was scheduled for that
week, so Browns case was set over to the week of December 3. At
the November 27 trial call, the parties again said that they were
ready for trial. But again there was another trial scheduled
that had priority over Browns. The same case that had been
scheduled for October had been rescheduled for the December
calendar because Judge Schally had been unable to empanel a jury
in October.
Judge Schally acknowledged that Browns case had a Rule
45 issue, but explained that under Wolfe v. State,3 he believed
the delay would be excluded because he would be unavailable to
preside over Browns trial until the next scheduled travel
calendar. Brown objected to Judge Schallys suggestion that the
time after the October trial calendar was excluded. But the
other trial consumed the week of December 3, so Browns case was
set over for trial the week of February 4, 2008.
At the January 29, 2008 trial call, Brown moved to
dismiss the case on Rule 45 grounds. Judge Schally denied the
motion. He ruled that under Rule 45(d)(2), the delay in getting
the case to trial was attributable to Browns April 2007 request
for a continuance.
Brown was convicted of the two charges. Brown now
appeals, claiming that more than 120 non-excludable days had
elapsed between the time he was charged and before January 29,
2008, when he moved to dismiss.
Brown Was Not Responsible for the Delay after the
October Trial Calendar
As already explained, for at least three years before
January 2008, Sand Points criminal trial weeks were calendared
for every two months. Consequently, when a defendant continued a
case from one trial week, the defendant knew or should have known
that the next opportunity for trial was two months away. In
Wolfe v. State, we ruled that under these circumstances, the Rule
45 clock generally will toll until the next normally calendared
trial week.4
Wolfe, like the instant case, involved a small Alaska
town that was served by a visiting judge. The defendant in Wolfe
had filed a motion to delay his trial until after May 14 because
his attorney would be out of the country until then.5 Eight days
after Wolfes motion, the superior court granted his motion and
rescheduled the trial for June 23.6 Wolfe did not object to this
trial date until he arrived in court on the day of trial, ten
weeks later.7 Wolfe then claimed that Rule 45 had already
expired.8 The superior court disagreed.
On appeal, Wolfe again argued that Rule 45 had expired
before the date of trial, but we upheld the superior courts
decision because Rule 45(d)(2) excludes all delay resulting from
a defense request for a continuance of trial.9 We upheld the
trial court because [t]he venue for Wolfes trial was Homer.
Wolfes trial judge, Judge Brown, resided in Kenai and made only
monthly trips to Homer and he was unavailable to visit Homer
during the normally scheduled week in May.10 As a result, the
next possible trial date was in June. Based on these
circumstances, we agreed with Judge Browns reasoning:
When you file a motion for continuance, ...
the court has to re-calendar the case. And
you may be available at a certain time, but
that does not mean that [the parties] and
other counsel are. So any time we depart
from [the date] that the case was originally
scheduled, you run into complications.[11]
Consequently, we found that there was no Rule 45 violation.12
Admittedly, the language in Wolfe that we agreed with
any time we depart from [the date] that the case was originally
scheduled, you run into complications is broad. But unlike
Wolfe, Browns continuance was not the proximate cause for
scheduling the trial after the October trial calendar. In Browns
case, it was unreasonable to attribute Browns one request for a
continuance, made soon after the clock began to run, as the
reason for later postponing the trial for an additional four
months.
Judge Schally properly excluded the period of time
required by Browns request for a continuance until the second
week of October, but Browns April request for a continuance was
not the legal reason for the additional delay from October to
February. Although Rule 45(d)(2) excludes the delay resulting
from a defense request for a continuance, we conclude that under
this subsection, trial courts may not repeatedly exclude
additional time from the Rule 45 calculation solely because the
defendant has at an earlier time requested a continuance.
Conclusion
The district courts judgment is REVERSED. The
district court shall vacate the convictions and enter dismissals
in accordance with Criminal Rule 45(g).
_______________________________
1 AS 28.35.030.
2 AS 04.16.050(a) & (b).
3 24 P.3d 1252 (Alaska App. 2001).
4 Id. at 1254-55.
5 Id. at 1254.
6 Id.
7 Id.
8 Id.
9 Id.
10 Id. at 1254-55.
11 Id. at 1255 (alterations in Wolfe).
12 Id.
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